Thursday, October 12, 2006

Over the past several months, we have witnessed many acts of deception on the part of Durham District Attorney Mike Nifong and the Durham Police Department in an apparent effort to sell the Duke Hoax to a trusting public and a passive media. We made note of the blatant fraud surrounding the first 911 call, and how the sleight of mouth was used to magnify the racial aspects of the hoax, thereby fueling condemnation of the entire lacrosse team by the community, the university, and the media. We have examined other abuses of the public trust apparently inherent in the office of District Attorney and DPD. These other Hoaxes Within A Hoax have included: the deception surrounding the DNA testing, the manufactured photo lineup, the invention of a fake names theory, the misuse of the grand jury system, the creation of theories based on prosecutorial necessity rather than evidence, and more.

Many of the subordinate Hoaxes have been laid bare and no longer persist. Incredibly, there remain several of the deceptions that continue. One of these lingering public frauds is the false impression that there was, and continues to be, a Wall of Silence conspiracy amongst the lacrosse team. This Wall of Silence Hoax began within a week of the allegations made against the Duke students in the early hours of March 14th, and continued in police statements, Nifongian utterances, court filings, media reports and letters to the editor penned by acquaintances of the District Attorney.

This Wall of Silence Hoax appears to have initially been used not only to heighten public condemnation of the accused, but also to attempt to goad the players into false confessions. Later this mini-Hoax was apparently used as an attempt to expand the inquisition, as Nifong sought personal and private information from un-indicted players. Most recently, the Wall of Silence Hoax has been used to cast shadows of doubt on the innocence of the Duke three, and to justify Mr. Nifong’s prosecution of them.

One Kernel of Truth

Many effective con games begin with some kernel of truth, and the Wall of Silence ruse was no different. The single fact that was twisted into this purposeful conspiracy theory was the cancellation of an informal meeting between the lacrosse team and investigator Himan. While this meeting was postponed due to sound parental advise on the basis that the players would not be accompanied by legal representation, this missed meeting became the basis for the perpetuation of the Wall of Silence Hoax.

"On Monday, March 20th, Himan telephoned Coach Pressler and said that he’d like to gather the whole team for an informal meeting, at which he would speak to each of the players who had been at the party. A local attorney, Wes Covington, who had handled the occasional student brush with the law, told Pressler that he thought the meeting with Himan was a good idea. An appointment was set up for the afternoon of Wednesday, March 22nd."

"By this time, a few of the players had told their parents about the incident. Now, faced with the meeting with the investigators, one of the players called his father, a Washington attorney; the father insisted that the meeting be postponed and quickly retained another Durham attorney, Robert Ekstrand, to represent the boys." New Yorker Article

As Cash Michaels notes in a comment left at Ruth Sheehan's Metro Blog, retaining and attorney and advising one's child to speak to police investigators with the benefit of retained counsel is nothing more than sound parental advise and not nearly a conspiracy of silence.

“And if one of my children was present during an alleged criminal situation they had nothing to do with, but someone may have been hurt as a result of, no, I wouldn't want any cloud over my child, which means I would instruct her to tell all (with the help of counsel).”Ruth's Metro Blog

Other Facts Ignored

A good con man attempts to disguise his con by playing up the “facts” that support his deception, while ignoring the genuine facts that might alert his marks to the truth. With the deftness of a street hustler, the enablers who encouraged the Wall of Silence Hoax apparently did exactly that. While promoting this invented conspiracy of silence, no mentions of the following facts were made:

On March 16th, the residents of 610 Buchanan, voluntarily, and without legal representation, submitted statements and DNA samples to police. Further, they offered to submit to polygraph examinations. Police declined the offer.

Lead investigator Sgt. Mark Gottlieb indicated that the residents of 610 Buchanan were being cooperative with the investigation. “The residents of the house have been cooperative with DPD in locating any suspects”The Chronicle

All 46 players willingly complied with the highly unusual non-testimonial identification order, despite the shaky basis for its request (A basis which has since been contradicted multiple times by the District Attorney himself.)

After the cancelled meeting, the only effort made by prosecutors or investigators to interview the players appears to have been in the course of their surreptitious entrance into a Duke dorm, where police without warrants attempted to furtively interview multiple players without the benefit of their legal counsel.

Not only was there no apparent effort to communicate with the lacrosse team in the presence of their attorneys, there was also no willingness to meet with or view exculpatory evidence from the indicted player’s attorney after charges were brought.

The Hoax Begins

While much has been made of the News and Observer’s possible culpability in the instigation of the drama that followed its story from the same day, the Herald Sun article that appeared on March 25th began the perpetuation of the invented conspiracy of silence theory.

Herald Sun reporter Brianne Dopart wrote:

“Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation. The refusal led officials to issue a "non-testimonial" order -- which allows police to threaten suspects with legal consequences if they choose not hand over evidence -- for each player's DNA."

Cpl. David Addison is quoted as saying:

"Addison said it was "unfortunate" that police had to go to such lengths, but that the team members "denied participation or knowing anything."

"Addison said the team got several chances to cooperate with police and that the non-testimonial order was issued only after the players kept silent."

"We never would have had to do those swabs if they would've cooperated," he said. Addison said police can't force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was "really, really strong physical evidence" that police will be able to compare with DNA results.”

The following day, Ms. Dopart added:

“Police say they went to the 610 N. Buchanan Blvd. house on the morning of March 14 but that no one answered the door. They returned March 15 with a search warrant."

Counting The Initial Deceptions

1. Police did not approach the entire lacrosse team with a warrant on March 16th, nor did anyone refuse to cooperate on that date. A warrant was served on March 16th, and each resident of 610 Buchanan asked to cooperate did exactly that.

2. The refusal above did not exist and therefore cannot have been the cause for the non-testimonial order.

3. In reality, the team cancelled one meeting in order to retain counsel first, and did not miss “several chances to cooperate.”

4. The "really, really strong physical evidence" was really, really strong enough to be disregarded when it matched someone other than any of the members of the lacrosse team. The DNA found in the accuser belonged to her boyfriend, and not to any of the lacrosse players.

5. Durham Police went to the house on March 14th in response to the 911 call by Kim Roberts, and not in response to the rape allegations. In her 911 call, Kim Roberts complained of racial slurs, but assured the dispatcher she was not hurt in any way.

6. Police did not return to the house on March 15th with a warrant. The warrant was not issued until March 16th.

*While the details of #5 and #6 may seem petty, the addition of the phantom visits on additional days helped to create the intended impression that there was a concerted effort to avoid cooperation.

In the ensuing days, we would see the Wall of Silence Hoax grow rapidly out of these misrepresentations. CrimeStoppers (or somebody claiming to be CrimeStoppers) and the News & Observer issued vigilante posters, professional protestors and deceived neighbors gathered for vigils prominently featured on the nightly news. The loudest voice of all, that of the Hijacker of the Hoax, would soon chime in.

Nifong Builds the Hoax

"The lacrosse team, clearly, has not been fully cooperative," Nifong tells Rene Syler and the nation on the CBS Early Show, “I think that their silence is as a result of advice with counsel."CBS March 30

"If it's not the way it's been reported, then why are they so unwilling to tell us what, in their words, did take place that night?" Nifong told [George] Smith on Thursday. "And one would wonder why one needs an attorney if one was not charged and had not done anything wrong."ESPN March 30

With the understanding that the team captains had given lengthy statements to police, and with the further understanding that neither Nifong nor investigators made any effort to interview the other players with their attorneys present, one can only conclude that Mr. Nifong’s statements were made in order to promote the Wall of Silence Hoax, while attempting to coerce or frighten the players into speaking without the benefit of counsel. In consideration of the overwhelming amount of exculpatory evidence, it appears to us that the only statement that Mr. Nifong would have deemed “cooperative” was going to be a false confession.

The Hoax Continues

Later, Mr. Nifong would repeat the argument of the Wall of Silence Hoax, while arguing for the court to allow his subpoena for access to the unindicted players' personal information. We would also see this Hoax theory repeated as facts in articles bemoaning that the Silence is Sickening, and the Silence Means Something. Most recently, we heard it repeated by Nifong acquaintance Jimmy Haynes in his letters published by the Herald Sun:

“If no rape occurred at the Duke lacrosse party, as she claims, perhaps she can tell us why 40 lacrosse players refused to cooperate with the police investigation on this case…I have known District Attorney Mike Nifong for over 15 years…”

“The 40 players not indicted have not come forward to report anything.”

What may be most ironic about the Wall of Silence Hoax, is that this invented conspiracy has been, and continues to be, nothing more than a misrepresentation of what could be construed as a Conspiracy of Truth. The lacrosse team’s steadfast denial that an assault has occurred has been unwavering for one reason only. It is the Truth.

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The Johnsville News

What does Nifong and the NBPP have in common?

John In Carolina

"He imagines himself confronted by giants."

"A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent."